docket no. 18-7020 & 18a628 jose antonio jimenez
TRANSCRIPT
DOCKET NO. 18-7020 & 18A628
CAPITAL CASE
IN THE UNITED STATES SUPREME COURT
JOSE ANTONIO JIMENEZ,
Petitioner,
vs.
JULIE L. JONES,
Secretary, Florida Department of Corrections, et al.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE ELEVENTH CIRCUIT COURT OF APPEALS
EXECUTION SCHEDULED
December 13, 2018
RESPONDENTS’ BRIEF IN OPPOSITION AND
RESPONSE IN OPPOSITION TO APPLICATION FOR STAY OF EXECUTION
PAMELA JO BONDI
ATTORNEY GENERAL
LISA-MARIE LERNER
Assistant Attorney General
MELISSA ROCA SHAW
Assistant Attorney General
Office of the Attorney General
1515 No. Flagler Drive, Ninth Floor
West Palm Beach, Florida 33401
Telephone: (561) 268-5203
E-Service: [email protected]
i
QUESTIONS PRESENTED FOR REVIEW
Whether Certiorari review should be denied because the Eleventh
Circuit Properly Affirmed Dismissal of an Unauthorized Successive
Habeas Petition as it was required to do under the AEDPA, and where
even if the underlying petition was authorized, it was clear Jimenez
would not be entitled to relief as the Hurst and Brady claims were
meritless and do not conflict with any decision of this Court or
involve an important, unsettled question of federal law.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ............................................................ i
TABLE OF CONTENTS .......................................................................................... ii
TABLE OF CITATIONS ........................................................................................ iii
CITATION TO OPINION BELOW .......................................................................... 1
STATEMENT OF JURISDICTION.......................................................................... 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................ 1
FACTUAL AND PROCEDURAL BACKGROUND .............................................. 2
REASONS FOR DENYING THE WRIT ................................................................. 9
Certiorari review should be denied because the Eleventh Circuit
Properly Affirmed Dismissal of an Unauthorized Successive Habeas
Petition as it was required to do under the AEDPA. In any case, even
if the underlying petition was authorized, it is clear Jimenez would not
be entitled to relief as the Hurst and Brady claims were meritless and
do not conflict with any decision of this Court or involve an
important, unsettled question of federal law. .................................................. 9
ARGUMENT ...........................................................................................................11
The Eleventh Circuit Court Of Appeals Properly Affirmed The
District Court’s Dismissal And Properly Denied A Stay Of Execution
Because Jimenez Filed His Successive Habeas Petition In The District
Court Without First Obtaining The Requisite Authorization From The
Court Of Appeals. Further The Underlying Constitutional Claims
Were Resolved Consistent With This Court’s Precedent And Do Not
Present Either An Important Or Unsettled Question Of Federal Law
For This Court’s Review. ..............................................................................11
DENIAL OF STAY .................................................................................................27
CONCLUSION ........................................................................................................28
CERTIFICATE OF SERVICE ................................................................................29
iii
TABLE OF CITATIONS
Page(s) Cases
Alleyne v. United States,
570 U.S. 99 (2013) ................................................................................................ 15
Almendarez-Torres v. United States,
523 U.S. 224 (1998) .............................................................................................. 15
Antone v. Dugger,
465 U.S. 200 (1984) .............................................................................................. 27
Asay v. State,
210 So. 3d 1 (Fla. 2016) ....................................................................................... 15
Atkins v. Virginia,
536 U.S. 304 (2002) .............................................................................................. 17
Barefoot v. Estelle,
463 U.S. 880 (1983) .............................................................................................. 27
Benchoff v. Colleran,
404 F.3d 812 (3d Cir. 2005) ................................................................................. 22
Blackman v. Davis,
2018 WL 6191348 (5th Cir. Nov. 28, 2018) ........................................................ 23
Bowersox v. Williams,
517 U.S. 345 (1996) .............................................................................................. 27
Brady v. Maryland,
373 U.S. 83 (1963) .................................................................................................. 7
Branch v. State,
234 So. 3d 548 (Fla.) ............................................................................................ 15
Brown v. Muniz,
889 F.3d 661 (9th Cir. 2018) .......................................................................... 23, 24
Cardinale v. Louisiana,
394 U.S. 437 (1969) ........................................................................................ 16, 25
Chapman v. California,
386 U.S. 18 (1967) ................................................................................................ 17
Cole v. State,
234 So. 3d 644 (Fla.) ............................................................................................ 15
Crouch v. Norris,
251 F.3d 720 (8th Cir. 2001) ................................................................................ 22
Davis v. State,
207 So. 3d 142 (Fla. 2016) ................................................................................... 17
iv
Delo v. Stokes,
495 U.S. 320 (1990) .............................................................................................. 27
Erie R. Co. v. Tompkins,
304 U.S. 64 (1938) ................................................................................................ 14
Evans v. Smith,
220 F.3d 306 (4th Cir. 2000) ................................................................................ 23
Finney v. State,
660 So. 2d 674 (Fla. 1995) ................................................................................... 18
Florida v. Powell,
559 U.S. 50 (2010) .......................................................................................... 17, 25
Floyd v. State,
497 So. 2d 1211 (Fla. 1986) ................................................................................. 18
Ford v. Wainwright,
477 U.S. 399(986) ................................................................................................. 21
Fox Film Corp. v. Muller,
296 U.S. 207 (1935) ........................................................................................ 16, 25
Goodwin v. Steele,
814 F.3d 901 (8th Cir. 2014) ................................................................................ 12
Hannon v. State,
228 So. 3d 505 (Fla.) ............................................................................................ 15
Harris v. Alabama,
513 U.S. 504 (1995) .............................................................................................. 19
Herb v. Pitcairn,
324 U.S. 117 (1945) .............................................................................................. 25
Hill v. Alaska,
297 F.3d 895 (9th Cir.2002) ................................................................................. 22
Hill v. McDonough,
547 U.S. 573 (2006) .............................................................................................. 27
Hitchcock v. State,
226 So. 3d 216 (Fla.) ............................................................................................ 15
Hughes v. State,
901 So. 2d 837 (Fla. 2005) ................................................................................... 19
Hurst v. Florida,
––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) .......................... 12, 14, 17
Hurst v. State,
202 So. 3d 40 (Fla. 2016) ..................................................................... 5, 10, 19, 20
In re Cain,
137 F.3d 234 (5th Cir. 1998) ................................................................................ 22
In re Coley,
v
871 F.3d 455 (6th Cir. 2017) ................................................................................ 12
In re Jones,
652 F.3d 603 (6th Cir. 2010) .......................................................................... 21, 22
In re Jones,
847 F.3d 1293 (10th Cir. 2017) ............................................................................ 12
In re Pickard,
681 F.3d 1201 (10th Cir. 2012) ............................................................................ 23
In re Wogenstahl,
902 F.3d 621 (6th Cir. 2018) ................................................................................ 23
Jenkins v. Hutton,
137 S. Ct. 1769 (2017) .......................................................................................... 14
Jimenez v. Crosby,
861 So. 2d 429 (Fla. 2003) ..................................................................................... 4
Jimenez v. Crosby,
905 So. 2d 125 (Fla. 2005) ..................................................................................... 4
Jimenez v. Fla. Dept. of Corrections,
481 F.3d 1337 (11th Cir.) ................................................................................... 4, 8
Jimenez v. Florida,
--- S.Ct. ---- 2018 WL 4681996 (Dec. 3. 2018) ............................................... 9, 16
Jimenez v. Jones,
137 S. Ct. 1220 (2017) ............................................................................................ 5
Jimenez v. State,
153 So. 3d 906 (Fla. 2014) ..................................................................................... 5
Jimenez v. State,
247 So.3d 395 (Fla. 2018) ................................................................................ 5, 10
Jimenez v. State,
703 So. 2d 437 (Fla. 1997) ................................................................................. 2, 3
Jimenez v. State,
810 So. 2d 511 (Fla. 2001) ..................................................................................... 3
Jimenez v. State,
997 So. 2d 1056 (Fla. 2008) ................................................................................... 4
Jimenez v. State,
2018 WL 4784203 (Fla. Oct. 4, 2018) ................................................................... 7
Kaczmar v. State,
228 So. 3d 1 (Fla. 2017) ....................................................................................... 15
Kansas v. Carr,
136 S. Ct. 633 (2016) ............................................................................................ 15
Lambrix v. Sec’y, DOC,
872 F.3d 1170 (11th Cir. 2017) ............................................................................ 11
vi
Lambrix v. Singletary,
520 U.S. 518 (1997) .............................................................................................. 24
Lambrix v. State,
227 So. 3d 112 (Fla.) ............................................................................................ 15
Michigan v. Long,
463 U.S. 1032 (1983) ................................................................................ 16, 17, 25
Pannetti v. Quarterman,
551 U.S. 930 (2007) ........................................................................................ 21, 23
Rhines v. Young,
899 F.3d 482 (8th Cir. 2018) ................................................................................ 12
Rhoades v. State,
233 P. 3d 61 (2010) .............................................................................................. 19
Ring v. Arizona,
536 U.S. 584 (2002) ........................................................................................ 13, 18
Roper v. Simmons,
543 U.S. 551 (2005) .............................................................................................. 17
Schriro v. Summerlin,
542 U.S. 348 (2004) .............................................................................................. 20
Scott v. United States,
890 F.3d 1239 (11th Cir. 2018) ...................................................................... 13, 22
Sochor v. Florida,
504 U.S. 527 (1992) .............................................................................................. 24
Street v. New York,
394 U.S. 576 (1969) .............................................................................................. 25
Tompkins v. Sec’y, Dep’t of Corr.,
557 F.3d 1257 (11th Cir. 2009) ................................................................ 13, 22, 23
Tyler v. Cain,
533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) ...................................... 12
Woodford v. Visciotti,
537 U.S. 19 (2002) ................................................................................................ 13
Yarborough v. Gentry,
540 U.S. 1 (2003) .................................................................................................. 13
Zack v. State,
228 So. 3d 41 (Fla. 2017) ..................................................................................... 15
Statutes
28 U.S.C. § 2244 ......................................................................................... 21, 22, 23
28 U.S.C. § 2244(b) .......................................................................................... 13, 22
vii
28 U.S.C. § 2244(b)(2)............................................................................................ 20
28 U.S.C. § 2244(b)(2)(A) ...................................................................................... 12
28 U.S.C. § 2244(b)(3)............................................................................................ 12
28 U.S.C.A. § 2244 (b)(1)(2)(A) ............................................................................ 11
Inst. (Crim.) 7.11 ..................................................................................................... 18
§ 2244(b)(2)(B) ....................................................................................................... 23
Rules
Fed. R. Civ. P. 60(b) ................................................................................................. 5
1
CITATION TO OPINION BELOW
The opinion below is the Eleventh Circuit Court of Appeals’ decision hold
that the district court correctly dismissed Jimenez’s first two claims for lack of
subject-matter jurisdiction and affirm on the basis of the district court’s well-
reasoned opinion reported at Jimenez v. Sec’y, Florida Dep’t of Corrections, Case
No. 18-15128 (11th Cir. Dec. 13, 2018).
STATEMENT OF JURISDICTION
The Eleventh Circuit issued its opinion on December 13, 2018 affirming the
district court’s denial of jurisdiction because Jimenez had sought review in the
district court without prior authorization under the AEDPA. Petitioner asserts
jurisdiction under USCA 28 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Respondent accepts Petitioner's statement regarding the applicable
constitutional and statutory provisions involved.
2
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Jose Antonio Jimenez is under an active death warrant which was
signed on July 18, 2018, and the execution is scheduled for December 13, 2018.
The relevant facts of Jimenez’s murder are outlined in the Florida Supreme Court’s
opinion affirming Jimenez’s conviction and sentence of death, Jimenez v. State,
703 So. 2d 437 (Fla. 1997).
On October 2, 1992, Jimenez beat and stabbed to death sixty-three-
year-old Phyllis Minas in her home. During the attack her neighbors
heard her cry, "Oh God! Oh my God!" and tried to enter her apartment
through the unlocked front door. Jimenez slammed the door shut,
locked the locks on the door, and fled the apartment by exiting onto
the bedroom balcony, crossing over to a neighbor’s balcony and then
dropping to the ground. Rescue workers arrived several minutes after
Jimenez inflicted the wounds, and Minas was still alive. After
changing his clothes and cleaning himself up, Jimenez spoke to
neighbors in the hallway and asked one of them if he could use her
telephone to call a cab.
Jimenez’s fingerprint matched the one lifted from the interior surface
of the front door to Minas’s apartment, and the police arrested him
three days later at his parents’ home in Miami Beach. In 1994, a jury
found him guilty of first-degree murder and burglary of an occupied
dwelling with an assault and battery and unanimously recommended
the death sentence. The court followed the jury’s recommendation,
finding four aggravating circumstances, one statutory mitigating
circumstance, and two nonstatutory mitigating circumstances.
Jimenez, 703 So. 2d at 438-39. After the jury’s unanimous death recommendation,
the court found four aggravating factors: that the defendant was previously
convicted of another capital felony or felony involving the use or threat of
3
violence; the murder was committed while Defendant was engaged in the
commission of a burglary of an occupied dwelling; the murder was committed
while Defendant was on community control; and the murder was especially
heinous, atrocious, or cruel (HAC). Jimenez, 703 So. 2d at 438 n1. The trial court
found one statutory mitigating factor, that the capacity of the Defendant to
appreciate the criminality of his conduct or conform his conduct to the
requirements of law was substantially impaired. The trial court found two non-
statutory mitigating circumstances: Jimenez’s potential for rehabilitation, to which
the court attributed little weight, and his potential sentence (life with a twenty-five-
year minimum mandatory, calculated by the Department as a ninety-nine-year
sentence with a release date at age eighty-one) which the court gave great weight.
The Florida Supreme Court affirmed Jimenez’s convictions and death
sentence in Jimenez v. State, 703 So. 2d 437 (Fla. 1997). His sentence became final
on May 18, 1998, when this Court denied certiorari. Jimenez v. Florida, 523 U.S.
1123 (1998).
On February 1, 2000, Jimenez filed his initial motion for post-conviction
relief. That motion was subsequently amended and denied by the state trial court
on June 8, 2000. On September 26, 2001, the Florida Supreme Court affirmed the
trial court’s denial of relief in Jimenez v. State, 810 So. 2d 511 (Fla. 2001), cert.
denied, 535 U.S. 1064 (2002). His state petition for writ of habeas corpus, filed in
4
the Florida Supreme Court on December 11, 2002, was denied in Jimenez v.
Crosby, 861 So. 2d 429 (Fla. 2003), on June 10, 2003. A second petition for writ of
habeas corpus was filed in the Florida Supreme Court May 26, 2004. The Court
denied relief in Jimenez v. Crosby, 905 So. 2d 125 (Fla. 2005), on March 18, 2005.
Jimenez also filed his initial federal petition for writ of habeas corpus in the
U.S. District Court for the Southern District of Florida on January 20, 2004 and
amended it on April 27, 2005. The federal district court dismissed his petition and
then denied the amended petition on January 30, 2006. A second federal habeas
petition was filed pro se on February 28, 2005, and was denied on March 1, 2006.
Jimenez sought certificates of appealability [COA] in his 2006 litigation and the
Eleventh Circuit Court of Appeals denied the COAs in Jimenez v. Fla. Dept. of
Corrections, 481 F.3d 1337 (11th Cir.), cert. denied, 552 U.S. 1029 (2007).
During that same time-period, Jimenez returned to the state trial court and
filed a successive Rule 3.850 motion for post-conviction relief on April 28, 2005.
The trial court denied relief on September 15, 2005, and the Florida Supreme Court
affirmed the trial court’s denial of relief in Jimenez v. State, 997 So. 2d 1056 (Fla.
2008), cert. denied, 557 U.S. 925 (2009).
On November 29, 2010, Jimenez filed another successive motion for post-
conviction relief. That motion was denied February 11, 2011. He filed another
successive motion in the trial court on March 20, 2013. That motion was denied on
5
April 24, 2014, and the appeal that followed in the Florida Supreme Court was
affirmed in Jimenez v. State, 153 So. 3d 906 (Fla. 2014), cert. denied, 135 S. Ct.
1712 (2015).
Jimenez sought further successive review in the federal district court in a
Rule 60(b) motion (Fed. R. Civ. P. 60(b)), filed May 16, 2014. The federal district
court denied the motion June 12, 2014. Jimenez then filed a motion to alter or
amend the judgment denying his 60(b) motion, which was denied July 29, 2014,
and on August 29, 2014, sought a COA from the district court. On October 28,
2014, the district court denied the COA. He filed his request for a COA in the
Eleventh Circuit Court of Appeals on November 17, 2014. That Court denied the
COA request May 29, 2015. His certiorari petition to this Court was denied on
February 27, 2017, in Jimenez v. Jones, 137 S. Ct. 1220 (2017).
On January 11, 2017 (amended November 3, 2017), Jimenez filed a Hurst v.
State, 202 So. 3d 40, 60 (Fla. 2016), claim in the trial court. Relief was denied on
November 16, 2017. An appeal followed in the Florida Supreme Court, which
affirmed the trial court’s denial of relief on June 28, 2018. See Jimenez v. State,
247 So.3d 395 (Fla. 2018) A rehearing motion was filed July 13, 2018, which the
Florida Supreme Court struck on July 18, 2018.
Litigation Under the Instant Warrant
On July 18, 2018, Governor Scott signed a death warrant for Jimenez’s
6
execution. (2018 PC 95). On July 19, 2018 the Florida Supreme Court issued a
briefing schedule. (2018 PC 86). Jimenez filed his demands for public records on
July 20, 2018 and the relevant agencies responded by July 22, 2018. (2018 PC 201-
254). A public records hearing was held on July 23, 2018. (2018 PC 255, 785). The
circuit court denied most of the requests but granted some requests for documents
from the Department of Corrections and FDLE. (2018 PC 366-367). Jimenez filed
his successive motion for post-conviction relief on July 24, 2018 (2018 PC 270)
and the State responded (2018 PC 379). The circuit court held a case management
hearing on July 26, 2018. (2018 PC 843). Jimenez filed additional public records
demands on July 27, 2018. (2018 PC 645-676). He then filed a rule 3.800(a)
motion to correct his burglary sentence on July 29, 2018. (2018 PC 677). The State
responded (2018 PC 697) and the circuit court denied the motion on July 30, 2018
(2018 PC 705). The court also denied the additional public records requests. (2018
PC 708). Jimenez filed a motion for rehearing on July 31, 2018 (2018 PC 772),
which was denied (2018 PC 760). The circuit court denied relief on the post-
conviction motion on that same day. (2018 PC 761). Jimenez filed a timely notice
of appeal to the Florida Supreme Court. (2018 PC 782).
On August 6, 2018, Jimenez filed another successive post-conviction
motion, based on information in hand-written notes by the detectives in the original
7
case. He alleges that the information is novel and supports Brady1 claims. The
State filed its response on August 7, 2018 and the lower court held a hearing on
August 8, 2018, to hear the motion.
The Florida Supreme Court affirmed the denial of Jimenez’s successive
post-conviction motions on October 4, 2018, Jimenez v. State, ___ So. 3d. ___,
2018 WL 4784203 (Fla. Oct. 4, 2018). Jimenez’s petition for writ of certiorari and
application for stay of execution from this decision are pending in this Court in
Case No. 18-6970 and Application No. 18A606.
On December 10, 2018, Jimenez filed a successive petition for writ of
habeas corpus in the United States District Court, Southern District of Florida and
on December 11, 2018, filed an application for a stay of execution. The State filed
responses to both on December 11, 2018, arguing that he was entitled to
resentencing under Florida statutory development of Chapter 2017-1 and a
prospective change to the Savings Clause that he insisted would apply to his case.
He also argued that his Brady/Giglio claims of newly discovered evidence require
his death sentence and convictions to be vacated. The district court, the Honorable
Donald Middlebrooks dismissed the petition as unauthorized and denied a stay
because Jimenez had not sought permission to file a successive petition from the
1 Brady v. Maryland, 373 U.S. 83 (1963).
8
court of appeals. The court issued its order denying both the successive petition for
writ of habeas corpus and the application for stay on December 12, 2018 (Case No.
18-25165-CIV-MIDDLEBROOKS).
On December 12, 2018, Jimenez filed an appeal in the United States Court
of Appeals for the Eleventh Circuit. (Case No. 18-15128-P) and subsequently filed
his initial brief on December 13, 2018, as well as a motion for stay of execution.
Respondent within the hour time frame mandated by the brief scheduling order
filed its answer brief. The court issued an order holding that “the district court
correctly dismissed Jimenez’s first two claims for lack of subject-matter
jurisdiction and affirm on the basis of the district court’s well-reasoned opinion.”
Jimenez v. Sec’y, Florida Dep’t of Corrections, Case No. 18-15128 (11th Cir. Dec.
13, 2018). Jimenez subsequently filed the instant Petition. This Brief in Opposition
follows.
9
REASONS FOR DENYING THE WRIT
Certiorari review should be denied because the Eleventh Circuit
Properly Affirmed Dismissal of an Unauthorized Successive Habeas
Petition as it was required to do under the AEDPA. In any case, even
if the underlying petition was authorized, it is clear Jimenez would not
be entitled to relief as the Hurst and Brady claims were meritless and
do not conflict with any decision of this Court or involve an
important, unsettled question of federal law.
Supreme Court Rule 10 provides that review on writ of certiorari is not a
matter of right, but of judicial discretion, and will be granted only when there are
special and important reasons therefor. Sup. Ct. R. 10. Jimenez advances no special
or important reason in this case, and none exists. The procedural ruling of the
Eleventh Circuit Court of Appeals below was correct and not in conflict with that
of any other court of appeals.
This Court recently denied certiorari on Jimenez’s Hurst related claims on
review from the Florida Supreme Court Jimenez v. Florida, --- S.Ct. ---- (2018)
2018 WL 4681996 (Dec. 3. 2018). In that petition, Jimenez asked this Court to
grant certiorari review to “consider the effect that the Florida Supreme Court’s
reading of the Florida capital sentencing statute and identifying elements of capital
murder has upon Jimenez’s death sentence.” See Petition filed September 23, 2018.
This issue should be provided even less traction here, when it was denied below on
jurisdictional grounds as an impermissible successive habeas petition filed without
authorization from the court of appeals.
10
Jimenez’s claim, even if properly presented in federal court below, would be
subject to the stringent requirements of the AEDPA for filing successive petitions.
No decision from this Court has held Hurst applies retroactively. The Florida
Supreme Court’s denial of the retroactive application of Hurst to Jimenez’s case is
based on adequate and independent state grounds, is not in conflict with any other
state court of last review, and is not in conflict with any federal appellate court.
As will be shown, there is no conflict in the law that would warrant certiorari
review pertaining to the issue of the Court of Appeals’ denial of his motion for stay
of execution and application to file a successive habeas petition. Second, nothing
about the Florida Supreme Court’s retroactivity decision is inconsistent with the
United States Constitution. Indeed, Petitioner cannot cite to any decision from this
or any appellate court that conflicts with the Florida Supreme Court’s decision in
Jimenez, 247 So.3d 395, in which the court determined that Petitioner was not
entitled to relief because Hurst v. State was not retroactive to his death sentence.
Third, the Brady claim2 does not warrant certiorari review as there is no conflict in
federal law and the court of appeals properly affirmed the dismissal where it found
that Panetti does not extend to newly discovered Brady claims and the Brady
2 Currently, Jimenez’s Brady claims is also pending a decision from this Court on
certiorari review from the Florida Supreme Court’s denial of his postconviction
motion in Florida Supreme Court Case number SC18-1321 (filed in this Court
under case number USSC 18-6970).
11
claims themselves are meritless. As no compelling reason for review has been
offered by Jimenez, certiorari should be denied. Sup. Ct. R. 10.
ARGUMENT
The Eleventh Circuit Court Of Appeals Properly Affirmed The
District Court’s Dismissal And Properly Denied A Stay Of Execution
Because Jimenez Filed His Successive Habeas Petition In The District
Court Without First Obtaining The Requisite Authorization From The
Court Of Appeals. Further The Underlying Constitutional Claims
Were Resolved Consistent With This Court’s Precedent And Do Not
Present Either An Important Or Unsettled Question Of Federal Law
For This Court’s Review.
The decision below does not conflict with any of this Court’s precedent or
present an important or unsettled question of law for this Court’s review.
A. There Is No Conflict In The Law Where Federal Courts Agree that Hurst
Does Not Meet AEDPA’S Requirement For Filing Successive Petitions.
Jimenez’s appeal to the federal courts for relief in the successive habeas
context faces the rather imposing burden of the AEDPA. The lower courts properly
considered this a successive petition. Jimenez’s claim was squarely based upon a
change in the law which falls within the construct of 28 U.S.C.A. § 2244
(b)(1)(2)(A): “the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable” (emphasis added).
“No U.S. Supreme Court decision holds that its Hurst decision is
retroactively applicable.” See Lambrix v. Sec’y, DOC, 872 F.3d 1170, 1182 (11th
12
Cir. 2017), cert. denied sub nom. Lambrix v. Jones, 138 S. Ct. 312 (2017); see also
In re Coley, 871 F.3d 455, 457 (6th Cir. 2017) (“But even if we assume that Hurst
announced “a new rule of constitutional law,” the Supreme Court has not “made
[Hurst] retroactive to cases on collateral review.”) (quoting Tyler v. Cain, 533 U.S.
656, 662–63, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001)); In re Jones, 847 F.3d
1293, 1295 (10th Cir. 2017) (“The Supreme Court has not held that its decision in
Hurst is retroactively applicable to cases on collateral review.”). As the Eighth
Circuit recently explained in denying permission to file a successive habeas
petition concerning Hurst:
In Case No. 17-1060, Rhines applies for authorization to file a second
or successive habeas petition arguing that “South Dakota’s sentencing
statute is likely unconstitutional” because, contrary to the U.S.
Supreme Court's decision in Hurst v. Florida, ––– U.S. ––––, 136
S.Ct. 616, 193 L.Ed.2d 504 (2016), the statute “does not require that
the jury find each fact necessary to impose a death sentence
unanimously and beyond a reasonable doubt.” See 28 U.S.C. §
2244(b)(3). We deny the Application. Leave to file a second or
successive habeas petition may be granted if “the applicant shows that
the claim relies on a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable.” 28 U.S.C. § 2244(b)(2)(A). “[A] new rule is
not ‘made retroactive’ unless the Supreme Court holds it to be
retroactive.” Goodwin v. Steele, 814 F.3d 901, 904 (8th Cir. 2014),
citing Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150 L.Ed.2d
632 (2001). The opinion in Hurst made no mention of retroactivity,
and no subsequent Supreme Court decision has made Hurst
retroactive.
Rhines v. Young, 899 F.3d 482, 499 (8th Cir. 2018).
13
As such, the Eleventh Circuit Court of Appeals correctly affirmed the
dismissal of the successive habeas petition. Specifically, “all three of Jimenez’s
claims qualify as “second or successive” under 28 U.S.C. § 2244(b), as we have
construed that term in binding precedent. See Jimenez v. Sec’y Dep’t of Corr., --
F.3d. --- (citing Tompkins v. Sec’y, Dep’t of Corr., 557 F.3d 1257, 1260 (11th Cir.
2009); Scott v. United States, 890 F.3d 1239 (11th Cir. 2018)). There is no conflict
among the courts of appeals on this question.
I. There Is No Underlying Constitutional Violation and The State
Court Retroactivity Ruling Rests On Independent And Adequate
State Grounds.
Assuming for a moment Jimenez can overcome the procedural hurdle
presented by a successive petition under the AEDPA, Jimenez has no chance of
success on the merits on the merits. As this Court is well aware, a federal court
may not grant a state prisoner’s habeas application unless the relevant state-court
decision “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States”
or “the state court’s determination of facts was unreasonable in light of the
evidence.” See Woodford v. Visciotti, 537 U.S. 19 (2002) and Yarborough v.
Gentry, 540 U.S. 1 (2003) (discussing and applying the AEDPA).
The Florida Supreme Court’s ruling on retroactivity in this case does not
violate this Court’s relevant precedent. Ring v. Arizona, 536 U.S. 584 (2002).
14
Perhaps recognizing that since this Court has decided the retroactivity issue in a
manner that forecloses the possibility of relief, Jimenez attempts to avoid this
result by invoking additional constitutional claims based on state law. However,
state statutory law and interpretations of state law do not implicate the denial of a
federal constitutional right and certainly do not warrant this Court’s exercise of
certiorari jurisdiction. See e.g. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)
(noting that “whether the law of the state shall be declared by its Legislature in a
statute or by its highest court in a decision is not a matter of federal concern []” and
that “[e]xcept in matters governed by the Federal Constitution or by acts of
Congress, the law to be applied in any case is the law of the state.”).
Aside from the question of retroactivity, certiorari would be inappropriate in
this case because there is no underlying federal constitutional error as Hurst v.
Florida did not address the process of weighing the aggravating and mitigating
circumstances or suggest that the jury must conduct the weighing process to satisfy
the Sixth Amendment. Petitioner’s contemporaneous burglary conviction, and
prior violent felony conviction, constitute aggravators under well-established
Florida law. These aggravators were sufficient to meet the Sixth Amendment’s
fact-finding requirement under this Court’s established precedent.3 See Jenkins v.
3 § 921.141(6)((listing prior violent felony and murder committed in the course of a
burglary as aggravators).
15
Hutton, 137 S. Ct. 1769, 1772 (2017) (noting that the jury’s findings that defendant
engaged in a course of conduct designed to kill multiple people and that he
committed kidnapping in the course of aggravated murder rendered him eligible
for the death penalty); Kansas v. Carr, 136 S. Ct. 633, 642 (2016) (rejecting a
claim that the Constitution requires a burden of proof on whether or not mitigating
circumstances outweigh aggravating circumstances, noting that such a question is
“mostly a question of mercy.”); Alleyne v. United States, 570 U.S. 99, 111 n.1
(2013) (recognizing the “narrow exception . . . for the fact of a prior conviction”
set forth in Almendarez-Torres v. United States, 523 U.S. 224 (1998)). There was
no underlying federal constitutional violation in this case.
Respondent would note that this Court has repeatedly denied certiorari to
review the Florida Supreme Court’s retroactivity decisions following the issuance
of Hurst v. State. See, e.g., Asay v. State, 210 So. 3d 1 (Fla. 2016), cert. denied,
138 S. Ct. 41 (2017); Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S.
Ct. 513 (2017); Lambrix v. State, 227 So. 3d 112 (Fla.), cert. denied, 138 S. Ct.
312 (2017); Hannon v. State, 228 So. 3d 505 (Fla.), cert. denied, 138 S. Ct. 441
(2017); Branch v. State, 234 So. 3d 548 (Fla.), cert. denied, 138 S. Ct. 1164
(2018); Cole v. State, 234 So. 3d 644 (Fla.), cert. denied, 17-8540, 2018 WL
1876873 (June 18, 2018); Kaczmar v. State, 228 So. 3d 1 (Fla. 2017), cert. denied,
138 S. Ct. 1973 (2018); Zack v. State, 228 So. 3d 41 (Fla. 2017), cert. denied, 17-
16
8134, 2018 WL 1367892 (June 18, 2018). Most notably, as mentioned above
Petitioner’s petition for certiorari filed just in September was denied by this Court
December 3, 2018. Jimenez v. Florida, --- S.Ct. ---- (2018) 2018 WL 4681996
(Dec. 3. 2018). Petitioner offers no persuasive, much less compelling reasons, for
this Court to grant review of his case at this late juncture, particularly where it
faces the considerable procedural hurdle of a successive habeas petition and the
deference to state court ruling it is due under the AEDPA.
The Florida Supreme Court’s determination of the retroactive application of
Hurst under the state law Witt standard is based on adequate and independent state
grounds and is not violative of federal law or this Court’s precedent. This Court
has repeatedly recognized that where a state court judgment rests on non-federal
grounds, where the non-federal grounds are an adequate basis for the ruling
independent of the federal grounds, “our jurisdiction fails.” Fox Film Corp. v.
Muller, 296 U.S. 207, 210 (1935); see also Michigan v. Long, 463 U.S. 1032, 1040
(1983) (“Respect for the independence of state courts, as well as avoidance of
rendering advisory opinions, have been the cornerstones of this Court’s refusal to
decide cases where there is an adequate and independent state ground.”);
Cardinale v. Louisiana, 394 U.S. 437, 438 (1969) (reaffirming that this Court has
no jurisdiction to review a state court decision on certiorari review unless a federal
question was raised and decided in the state court below). If a state court’s decision
17
is based on separate state law, this Court “of course, will not undertake to review
the decision.” Florida v. Powell, 559 U.S. 50, 57 (2010); Long, 463 U.S. at 1041.
Because the Florida Supreme Court’s retroactive application of Hurst in
Petitioner’s case is based on adequate and independent state grounds, certiorari
review should be denied.
The Eighth Amendment requires capital punishment to be limited “to those
who commit a ‘narrow category of the most serious crimes’ and whose extreme
culpability makes them ‘the most deserving of execution.’” Roper v. Simmons, 543
U.S. 551, 568 (2005) (quoting Atkins v. Virginia, 536 U.S. 304, 319 (2002)). As
such, the death penalty is limited to a specific category of crimes and “States must
give narrow and precise definition to the aggravating factors that can result in a
capital sentence.” Roper, 543 U.S. at 568. Petitioner’s death sentence was imposed
in accordance with all applicable constitutional principles at the time it was
imposed.4
4 Moreover, Hurst errors are subject to harmless error analysis. See Hurst v.
Florida, 136 S. Ct. at 624. See also Chapman v. California, 386 U.S. 18, 23-24
(1967). Here, the jury recommendation of death was made unanimously by the
jury: The aggravating circumstances found by the trial court and affirmed by the
Florida Supreme Court on appeal were uncontestable (as unanimously found by the
jury at the guilt phase of this case) and the jury recommended death 12-0. See
Davis v. State, 207 So. 3d 142, 174 (Fla. 2016), cert. denied, 137 S. Ct. 2218
(2017) (a jury’s unanimous recommendation “allow[s] us to conclude beyond a
reasonable doubt that a rational jury would have unanimously found that there
were sufficient aggravators to outweigh the mitigating factors.”).
18
The retroactivity ruling below does not conflict with any of this Court’s
precedent or present this Court with a significant or important unsettled question of
law. Accordingly, certiorari should be denied.
Jimenez’s argument that he was denied his right to have a jury find beyond a
reasonable doubt the “critical elements” that subjected him to the death penalty, is
plainly meritless. Notwithstanding that the death recommendation in this case was
unanimous, his argument ignores Florida’s longstanding practice of using the
beyond-a-reasonable-doubt standard of proof for proving aggravating factors in
Florida. See Fla. Std. J. Inst. (Crim.) 7.11; Finney v. State, 660 So. 2d 674, 680
(Fla. 1995); Floyd v. State, 497 So. 2d 1211, 1214-15 (Fla. 1986). Hurst did
nothing to change this standard. Furthermore, neither Hurst v. Florida nor Hurst v.
State changed the standard of proof as to any required finding in Florida’s capital
sentencing proceedings. Rather, both Hurst v. Florida and Hurst v. State addressed
who makes the findings — the jury versus the judge — not what standard of proof
is used.
Jimenez’s argument that his sentence somehow violates the Eighth
Amendment is plainly meritless. To the extent Jimenez suggests that jury
sentencing is now required under federal law, this is not the case. See Ring, 536
U.S. at 612 (Scalia, J., concurring) (“[T]oday’s judgment has nothing to do with
jury sentencing. What today’s decision says is that the jury must find the existence
19
of the fact that an aggravating factor existed.”) (emphasis in original); Harris v.
Alabama, 513 U.S. 504, 515 (1995) (holding that the Constitution does not prohibit
the trial judge from “impos[ing] a capital sentence”). No case from this Court has
mandated jury sentencing in a capital case, and such a holding would require
reading a mandate into the Constitution that is simply not there. The Constitution
provides a right to trial by jury, not to sentencing by jury.
Jimenez’s death sentence is neither unfair nor unreliable because the judge
imposed the sentence in accordance with the law existing at the time of his trial.
Petitioner cannot establish that his sentencing procedure was less accurate than
future sentencing procedures employing the new standards announced in Hurst v.
State, 202 So. 3d 40 (Fla. 2016). Certainly, other than speculation, Jimenez has
neither identified nor established any particular lack of reliability in the
proceedings used to impose his death sentence. See Hughes v. State, 901 So. 2d
837, 844 (Fla. 2005) (holding that Apprendi is not retroactive and noting that
“neither the accuracy of convictions nor of sentences imposed and final before
Apprendi issued is seriously impugned”; Rhoades v. State, 233 P. 3d 61, 70-71
(2010) (holding that Ring is not retroactive after conducting its own independent
Teague analysis and observing, as this Court did in Summerlin, that there is debate
as to whether juries or judges are the better fact-finders and that it could not say
“confidently” that judicial factfinding “seriously diminishes accuracy.”) Just like
20
Ring did not enhance the fairness or efficiency of death penalty procedures, neither
does Hurst. As this Court has explained, “for every argument why juries are more
accurate factfinders, there is another why they are less accurate.” Schriro v.
Summerlin, 542 U.S. 348, 356 (2004). Thus, because the accuracy of Jimenez’s
death sentence is not at issue, fairness does not demand retroactive application of
Hurst.
II. Jimenez’s Brady/Giglio Claim
A. The Procedural Ruling Below Does Not Conflict With Any Of This
Court’s Precedent Or Present An Important Or Unsettled Question Of Law.
The district court below properly dismissed the successive habeas petition
because there was no prior authorization to pursue this claim from the Eleventh
Circuit Court of Appeals. As Jimenez had a prior habeas petition adjudicated on
the merits, Petitioner must have obtained authorization from the court of appeals to
pursue his Brady/Giglio claims and only upon a prima facie showing of relief. §
2244(b)(3)(C). 28 U.S.C. § 2244(b)(2) provides that the “the facts underlying the
claim, if proven and viewed in light of the evidence as a whole, would be sufficient
to establish by clear and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the underlying
offense.” Jimenez did not even attempt to meet that burden. Reading the rule as
Jimenez suggests and expanding Panetti beyond its recognized bounds would
21
effectively overturn the plain statutory language governing successive habeas
petitions. Jimenez’s reliance of Pannetti v. Quarterman, 551 U.S. 930 (2007) is
misplaced.
In Panetti, the Supreme Court held that the statutory bar on second or
successive petitions does not apply to claims under Ford v. Wainwright, 477 U.S.
399, 410(986), which prohibited the execution of insane prisoners. Because an
inmate’s competency to be executed cannot be determined until the execution is
imminent, the Court held that the petition was functionally a first petition because
the claim was not ripe until the warrant was signed. Moreover, the claim was based
on changing factual circumstance, i.e. the inmate’s mental condition, which could
not properly be assessed until the close to the execution date.
Additionally, Jimenez relies on In re Jones, 652 F.3d 603 (6th Cir. 2010), to
argue that the gatekeeping procedures of 28 U.S.C. § 2244 do not apply to his
habeas petition. See Petition at 22. In Jones, the court reiterated that the
gatekeeping procedures are not applicable where a habeas petitioner asserts claims
whose predicates arose after the filing of the original petition. There, the petitioner
raised an ex post facto challenge to an amendment to Michigan’s parole system
which occurred two years after Jones filed his initial habeas petition. Id. at 605.
The Jones court held:
22
Like the Ford claims at issue in Panetti and Martinez–Villareal,
Jones’s ex post facto claim was unripe when his initial petition was
filed—the events giving rise to the claim had not yet occurred. And,
as in Panetti, no useful purpose would be served by requiring
prisoners to file ex post facto claims in their initial petition as a matter
of course, in order to leave open the chance of reviving their
challenges in the event that subsequent changes to the state’s parole
system create an ex post facto violation. As a result, we conclude that
Jones’s ex post facto claim is not properly classified as “second or
successive,” and thus does not require our authorization to go forward
in the district court. In so holding, we join several other circuits that
have reached the closely related conclusion that § 2244(b)'s
limitations on second or successive petitions do not apply to a
numerically second petition challenging a parole determination or
disciplinary proceeding that occurred after the prisoner's initial
petition was filed. See In re Cain, 137 F.3d 234, 236–37 (5th Cir.
1998) (challenge to disciplinary revocation of good-time credits);
Crouch v. Norris, 251 F.3d 720, 723–24 (8th Cir. 2001) (challenge to
parole determination); Hill v. Alaska, 297 F.3d 895, 897–99 (9th
Cir.2002) (challenge to parole determination); see also Benchoff v.
Colleran, 404 F.3d 812, 817 (3d Cir. 2005) (noting that a challenge to
a parole determination would not constitute a “second or successive”
petition under § 2244 if “the claim had not arisen or could not have
been raised at the time of the prior petition,” but holding prisoner's
claim barred because the parole board had rendered an identical
determination before his initial petition was filed).
In re Jones, 652 F.3d 603, 605–06 (6th Cir. 2010).
Moreover, as was noted in the concurrence opinion by the Honorable Judges
Carnes and Tjoflat:
We write separately to express our continued agreement with
this Court’s decision in Tompkins that Brady and Giglio claims
are subject to the second or successive application requirements
set out in 28 U.S.C. § 2244(b). See Tompkins v. Sec’y, Dep’t of
Corr., 557 F.3d 1257, 1260 (11th Cir. 2009); see also Scott v.
United States, 890 F.3d 1239 (11th Cir. 2018) (following the
23
Tompkins decision). There is no disagreement that Tompkins is
binding precedent in this circuit. Nor is there any circuit split
over the issue of whether Panetti v. Quarterman, 551 U.S. 930,
127 S. Ct. 2842 (2007) made the second or successive
application requirements inapplicable to Brady and Giglio
claims. All three other circuits that have decided the issue since
Panetti agree with ours that the second or successive application
requirements do apply to Brady and Giglio claims. See
Blackman v. Davis, No. 16-11820, —F.3d —, 2018 WL
6191348, at *5 (5th Cir. Nov. 28, 2018) (stating that
petitioner’s contention that Brady and Giglio claims are not
subject to § 2244(b)(2)(B)’s second or successive requirements
has been “rejected conclusively” by the Fifth Circuit); In re
Wogenstahl, 902 F.3d 621, 627–28 (6th Cir. 2018) (holding that
petitioner’s Brady claims were subject to § 2244(b)(2)(B)’s
second or successive requirements because the claims were “not
unripe at the time [the petitioner] filed his initial petition” even
though the petitioner “was unaware” of the facts giving rise to
the claims at that time); Brown v. Muniz, 889 F.3d 661, 668–73
(9th Cir. 2018) (holding that Panetti’s reasoning does not
extend to Brady claims and that they are subject to AEDPA’s
second or successive requirements because “the factual
predicate supporting a Brady claim existed at the time of the
first habeas petition”) (quotation marks and brackets omitted);
see also In re Pickard, 681 F.3d 1201, 1205 (10th Cir. 2012)
(declining to certify second or successive Brady and Giglio
claims under § 2244 because they did not meet the
requirements of § 2255(h)); Evans v. Smith, 220 F.3d 306, 324
(4th Cir. 2000) (concluding pre-Panetti that Brady claims are
subject to § 2244(b)(2)(B)’s second or successive application
requirements and explaining that if they were not “AEDPA’s
purpose of achieving timely, final resolutions of claims in the
interests of justice and out of respect for state judicial processes
would surely be eroded under such a regime”).
As the Eleventh Circuit Court of Appeals well noted, Jimenez’s appeal to the
federal courts for relief in the habeas context faces the rather imposing burden of
24
the AEDPA. Under Brown v. Muniz, Jimenez’s claim that he could be unaware of
the facts of his own statement made to the police is a completely untenable
argument to be considered an “actionable Brady violation” in the context of Judge
Rosenbaum’s concurring opinion. Here, it is clear through the extensive state
litgation that Tompkins would still prevail Jimenez would have still not been able
to show due diligence or an actionable Brady violation, given the specific facts of
his Brady/ Giglio claims arising from his own statements to the police. Therefore,
certiorari review is not warranted.
a. Even if Jimenez were to get through all of the procedural hurdles,
certiorari review is not warranted when the Brady/Giglio claim
was denied on independent and adequate state grounds.
Aside from the procedural hurdles faced by a successive petition under the
AEDPA, this case would also be an inappropriate vehicle for certiorari review as
the underlying Brady/Giglio claims were procedurally barred under established
Florida law. As this is an adequate and independent state law ground, the petition
should be denied. This Court has consistently adhered to the principle that it will
not review judgments of state courts that rest on adequate and independent state
grounds. Lambrix v. Singletary, 520 U.S. 518, 523 (1997) (“We in fact lack
jurisdiction to review such independently supported judgments on direct appeal:
Since the state-law determination is sufficient to sustain the decree, any opinion of
this Court on the federal question would be purely advisory”); Sochor v. Florida,
25
504 U.S. 527, 533 (1992) (stating that “this Court lacks jurisdiction to review a
state court’s resolution of an issue of federal law if the state court’s decision rests
on an adequate and independent state ground”); Herb v. Pitcairn, 324 U.S. 117,
125 (1945) (“This Court from the time of its foundation has adhered to the
principle that it will not review judgments of state courts that rest on adequate and
independent state grounds.”).
The Florida Supreme Court specifically found each of the Brady or Giglio
claims to be procedurally barred under independent state law grounds. This Court
has repeatedly recognized that where a state court judgement rests on non-federal
grounds, where the non-federal grounds are an adequate basis for the ruling
independent of the federal grounds, “our jurisdiction fails.” Fox Film Corp. v.
Muller, 296 U.S. 207, 210 (1935); Michigan v. Long, 463 U.S. 1032, 1038 (1983);
see also Cardinale v. Louisiana, 394 U.S. 437, 438 (1969) (reaffirming that this
Court has no jurisdiction to review a state court decision on certiorari review
unless a federal question was raised and decided in the state court below); Street v.
New York, 394 U.S. 576, 581-82 (1969). If a state court’s decision is based on
separate state law, this Court “of course, will not undertake to review the
decision.” Florida v. Powell, 559 U.S. 50, 57 (2010). The Florida Supreme Court
found the claim raised by Petitioner untimely and procedurally barred from review
in Petitioner’s successive motion for post-conviction relief. For that reason alone,
26
certiorari review should be denied.
27
DENIAL OF STAY
For the reasons set out above, Jimenez has not presented a colorable claim
for relief, and, because that is so, no stay of execution is justified in this case. See
Bowersox v. Williams, 517 U.S. 345 (1996); Delo v. Stokes, 495 U.S. 320 (1990);
Antone v. Dugger, 465 U.S. 200 (1984). Moreover, he cannot demonstrate a
substantial denial of a constitutional right that would be mooted by his execution.
Barefoot v. Estelle, 463 U.S. 880 (1983). As this Court noted in Hill v.
McDonough, 547 U.S. 573, 583-84 (2006), “equity must be sensitive to the State’s
strong interest in enforcing its criminal judgments without undue interference from
the federal courts.” Here, the State’s strong interest in the timely enforcement of a
sentence is not outweighed by the unlikely possibility that Jimenez’s petition for
certiorari will be granted by this Court. The equities in this case tilt decidedly
against Jimenez in favor of the State and the victim’s family members.
Accordingly, the State respectfully requests that this Court deny the instant petition
and application for a stay of execution.
Entry of a stay to review a jurisdictional question from the district court on
an issue with no underlying merit, renders obvious harm to the State, the victims’
families, and, their interest in finality. The stay here is most certainly not in the
public interest, with the public having borne the cost and emotional burden of
extensive litigation over the course of more than twenty years. Further, any stay
28
entered in this case would be inappropriate where Petitioner has no “substantial
likelihood of success” on the merits. More importantly, however, the last-minute
nature of Jimenez’s filing is of his own making, and he should not profit from his
dilatory and abusive strategy. His request for a stay should be denied.
CONCLUSION
Based on the foregoing, Respondent respectfully requests that this Court
deny the petition for writ of certiorari and the application for stay of execution.
Respectfully submitted,
PAMELA JO BONDI
ATTORNEY GENERAL
/s/ Lisa Marie Lerner
LISA-MARIE LERNER
Assistant Attorney General
Florida Bar No. 698271
/s/ Melissa Roca Shaw
MELISSA ROCA SHAW
Assistant Attorney General
Florida Bar No. 99628
Office of the Attorney General
1515 No. Flagler Drive, Ninth Floor
West Palm Beach, Florida 33401
Telephone: (561) 268-5203
E-Service: [email protected]
COUNSEL FOR RESPONDENT
29
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on this 13th day of December 2018, a true and
correct copy of the foregoing RESPONDENT’S BRIEF IN OPPOSITION has
been submitted using the Electronic Filing System. I further certify that a copy has
been sent by U.S. mail to: Martin J. McClain, Esquire, McClain and McDermott,
P.A., 141 N.E. 30th Street, Wilton Manors, Florida 33334-1064,
[email protected]. I further certify that all parties required to be served
have been served.
/s/ Lisa Marie Lerner
/s/ Lisa-Marie Lerner
COUNSEL FOR RESPONDENT